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Employee misconduct outside the workplace: legal principles and rights involved

Employee behaviour after work hours and off-premises is usually of no concern to an employer.

A link must be shown between away from work, off-premises misconduct and business operations, in order for an employer to discipline an employee.

Sometimes an employer has the difficult task of dealing with an employee who has been charged with a criminal offence that has taken place outside of the workplace.

In most situations, what an employee does after work hours and while off the premises is of no concern to the employer. However, in certain circumstances the company may be negatively affected by a perception that they employ unsavoury or untrustworthy people.

What is the best way forward? Below we discuss the legal principles and employee and employer rights.

What are the legal principles involved?

Usually, the employer’s jurisdiction over an employee’s conduct ends the moment they step off the premises. An exception exists, and disciplinary procedures can be implemented, if an employee’s misconduct impacts the workplace.

The employer has to demonstrate that they have a legitimate interest in the employee’s conduct and that a nexus or link exists between the employee’s conduct and the employer’s business. Our courts have suggested that a nexus exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability or continuity of business of the employer.

In the absence of such link, the employee’s conduct is regarded as non-work-related conduct.

If a disciplinary procedure is called, both the employee and employer should be aware of the correct procedure as well as their respective rights.

Employees and employers have numerous legal rights during a disciplinary procedures

Both employer and employee are entitled to numerous legal rights.

Employee rights in respect of the disciplinary procedure

Amongst others, the employee concerned has the right to:

  • Be informed about an investigation and that the results may be issued in the disciplinary enquiry
  • Access to documents produced in evidence
  • A fair hearing
  • Be represented
  • Be heard, in terms to lead evidence etc.
  • Call witnesses
  • Cross- examine witnesses
  • An interpreter, if necessary
  • Written reasons for decisions
  • Plead in mitigation
  • Appeal in terms of the internal remedies

Employer rights in respect of the disciplinary procedure

Amongst others, the employer has the right to:

  • Discipline employees
  • Suspend employees
  • Appoint a Chairperson and Initiator
  • Lead evidence
  • Call witnesses
  • Cross-examine witnesses
  • Argue aggravating circumstances
  • Consider and impose an appropriate sanction
  • Access to documents produced in evidence

Guiding principle

In all cases involving employee misconduct outside the workplace, the employer must be able to show how the wrongdoing is relevant to the workplace. If the link between the misconduct and business operations can be shown, the employer can discipline the employee for off-premises, away-from-work misconduct.

For further legal advice about employee misconduct outside the workplace, disciplinary hearings or other Labour and Employment Law matters, please don’t hesitate to contact one of our attorneys at Abrahams and Gross.

By

Jeremy Simon and Keegan Kolbe, Abrahams & Gross Attorneys

t    021 422 1323    |    e   info@abgross.co.za

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

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